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U.S. voting for judges perplexes other nations

Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.

The vote came after a bitter $5-million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.

The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups. Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.

"It gives you nightmares for years afterwards," Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. "You come out of this completely shattered," Baissus said.

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States, most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people.

A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

"If you want judges to be responsive to public opinion, then having elected judges is the way to do that," said Sean Parnell, president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Across the United States, 87 percent of all state court judges face elections and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

"To the rest of the world," Hans Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, "American adherence to judicial elections is as incomprehensible as our rejection of the metric system."

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Sandra Day O'Connor, the former Supreme Court justice, has condemned the practice of electing judges. "No other nation in the world does that," she said at a conference on judicial independence at Fordham Law School in April, "because they realize you're not going to get fair and impartial judges that way."

The new justice on the Wisconsin Supreme Court is Michael Gableman, who has been the only judge on the Burnett County Circuit Court in Siren, a job he got in 2002 when he was appointed to fill a vacancy by Governor Scott McCallum, a Republican.

The governor, who received two $1,250 campaign contributions from Gableman, chose him over the two candidates proposed by his advisory council on judicial selection. Gableman, a graduate of Hamline University School of Law in St. Paul, Minnesota, went on to be elected to the circuit court position in 2003.

The much more rigorous French model, in which aspiring judges are subjected to a battery of tests and years at a special school, has its benefits, said Mitchel Lasser, a law professor at Cornell University in New York and the author of "Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy."

"You have people who actually know what the hell they're doing," Lasser said. "They've spent years in school taking practical and theoretical courses on how to be a judge. These are professionals."

"The rest of the world," he added, "is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American."

But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.

"I'm not uncritical of the American system and we obviously have excesses in terms of politicization and the campaign finance system," said David O'Brien, a professor of judicial politics at the University of Virginia and an editor of "Judicial Independence in the Age of Democracy: Critical Perspectives From Around the World."

"But these other systems are also problematic," O'Brien continued. "There's greater transparency in the American system." The selection of appointed judges, he said, can be influenced by political considerations that are hidden from public view.

Baissus said France had once considered electing its judiciary. "It's an argument that was largely debated after the French Revolution," he said. "It was thought not to be a good idea."